Some call ratings unfair, but state backs use of details on prior service

04:19 PM CST on Tuesday, January 24, 2006

If you've ever acquitted a defendant while serving on a Dallas County jury, the district attorney's office considers you a "bad" juror and is not likely to seat you again.

Prosecutors consult a confidential, taxpayer-funded database as they decide which people to accept or reject for service.

Appeals courts and the Texas attorney general have upheld prosecutors' right to do so and ruled that defense lawyers and the public – including former jurors – have no right to see the database.

District Attorney Bill Hill denied a request by The Dallas Morning News for access to the database and refused to allow the newspaper even to photograph an investigator using it.

So what is known about the database is based on prosecutors' descriptions.

Prosecutors rate jurors as "good," "bad" or "fair" based on whether they voted to convict or gave a stiff sentence. For decades, names, addresses and ratings were the only information on jurors included in the database.

In recent years, the database has been expanded to include prosecutors' brief comments about what jurors said of the trial and during jury selection. The expanded database also includes the names of people who were rejected during jury selection.

The database's origins date to the 1940s, when former Dallas County District Attorney Henry Wade was a young prosecutor and kept notes on jurors in cases he tried. In the early 1950s, the list was expanded to include all criminal case jurors, and in the 1970s, it was computerized. The database now contains 1 million to 2 million names, Mr. Hill said.

Originally, prosecutors said, the goal was to red-flag "nuts" to be avoided as jurors.

Today, there is no office policy requiring prosecutors to eliminate jurors based on the database. Several prosecutors said they don't automatically try to strike jurors flagged as "bad," because they also consider the circumstances of the previous trial.

Others said they routinely exclude people who have been identified as "bad."

"If it's a felony [case], and they found someone not guilty, that's usually enough information that you'd be able to exercise a strike right then and there," said one of Mr. Hill's top assistants, Toby Shook, who supervises felony prosecutors in several courts.

But prosecutor Livia Liu said she rarely relies on the database "because I don't think it's fair or an accurate gauge."

Defense lawyers complain the system ignores the possibilities of a wrongful charge or a weak state case and could be susceptible to racial profiling.

"Why does that make them a bad juror because they followed the law?" asked defense lawyer Kevin Brooks.

Judges instruct jurors to weigh the facts, to convict only if the state proves its case beyond a reasonable doubt, and to remember that defendants are presumed innocent until proven guilty.

Defense lawyer Anthony Lyons said the ratings are unfair because no one has access to secret jury deliberations.

"They could have been the most pro-state juror who held out for four days and decided to cave in," he said.

Prosecutors argue that the database is a useful tool.

"We're here to make sure the community gets a fair trial," said Rick Jackson, a prosecutor for 15 years. "The people we're red-flagging are the people that aren't going to be fair to us, fair to the community."

The accuracy of the database depends on prosecutors' honesty, but because prosecutors usually pair up to try cases, Mr. Shook said, there is always someone to catch a lie. And anyone caught doing that, he added, would be fired.

The 5th District Court of Appeals in Dallas has routinely supported prosecutors' right to use the database. But the court has also cautioned that it doesn't condone the use of a rating list without criteria or explanations.

"The use of this type of list too easily allows the possibility by an unscrupulous prosecutor wishing to circumvent" laws against race-based jury selection, the court ruled in 1999.

Defense lawyer Russell Wilson II has already lost one request for access to the database under the state's open-records laws, but plans to try again. He believes the database might reveal certain trends, such as whether "there are segments of the community being struck at higher rates."

Besides, he added, "If your DA thinks you're a bad juror, then you ought to know."